I concur in the result (upholding the
constitutionality of the Bakers’ Act as a valid exercise of the state’s police
power) reached by the Chief Judge for the following reasons:

I do not think the regulation in question can
be sustained unless we are able to say from common knowledge that working in a
bakery and candy factory is an unhealthy employment. If such an occupation is
unhealthy, the Legislature had the right to
prohibit employers from requiring or permitting their employees to spend more
than a specified number of hours per day or week in the work, because such a
command would be in the interest of the public health, and would promote the
general welfare. As in the Jacobs Case we took judicial notice of the nature
and qualities of tobacco (page 113, 98 N.
Y., 50 Am. Rep. 636), so in this case we may take
judicial notice of the effect of very fine particles of flour and sugar when
inhaled into the lungs from the heated atmosphere of manufactories of bread and
candy.

Necessarily, in considering the subject, we
may resort to such sources of information as were open to the Legislature.
Vital statistics show that those vocations which require persons to remain for
long periods of time in a confined and heated atmosphere filled with some
foreign substance, which is inhaled into the lungs, are injurious to health,
and tend to shorten life.

Bakers and confectioners, who, during working hours,
constantly breathe air filled with the finest dust from *170 flour and
sugar, have a tendency to consumption, the most terrible scourge known to
modern civilization, and resulting in more deaths than any other disease. 1
People's Cyc. 479; Mulhall'sDict. Statistics, 193 and 683. Thus, in the article
on phthisis [a progressively wasting condition] in volume 18 of the last
edition of the Encyclopaedia Britannica it is said:
'Occupations which necessitate the inhalation of irritating particles, as in the
case of stonemasons, needle grinders, workers in
minerals, in cotton, flour, straw, etc., are especially hurtful, chiefly from
the mechanical effects upon the delicate pulmonary tissues of the matter
inhaled. No less prejudicial are occupations carried on in a heated and close
atmosphere, as is often the case with compositors, goldbeaters, seamstresses,'
etc.

So, in Alden's Encyclopaedia, vol. 9, tit. 'Consumption,' the following
occurs: 'Often the workshops of tailors, printers, bakers, and other businesses
carried on in close, ill-ventilated apartments by large numbers of working
people, are nurseries of consumption.' We quote from a few more out of many
authorities to the same effect: 'It is certain that much might be done to
improve the public health in this respect by more attention on the part of
employers of labor to the comfort and habits of those who are, in more senses
than one, their 'hands' and the sources of their property. A certain kind of
improvement has, indeed, been already effected by the improved living of the
working classes during the last twenty years. Still it is well known and proved
by careful inquiries that the workshops of tailors, printers, bakers, and other
businesses carried on in close, ill ventilated **383 apartments by large
numbers of workmen are, in a very aggravated sense, nurseries of consumption. *
* * The cutters and needle grinders of Sheffield appear to owe their
notoriously short lives to consumption brought on by the inhalation of metallic
particles in the close and stifling atmosphere of their workshops. * * *

Even admitting, therefore,
that the causes of consumption may be in part practically irremovable, there
seems no reason to doubt that very much might be done to diminish *171
its prevalence, as well as to arrest its course when already formed, by due
attention to the comfort of the laboring population, both in their dwellings
and in the pursuit of their occupations.' 4 International Cyclopaedia,
286. 'Particular occupations predispose [to consumption], especially such as
occasion constant inhalation of small particles.' 2 Johnson Cyclopaedia,
488. 'Thus tailors, seamstresses, and similar workers are especially prone to
the disease. More especially is this true of occupations whose performance
necessitates the inhalation of dust particles. * * * The dust particles act as
irritants of the fine structures which line the air passages and vessels,
inducing chronic changes, which in turn are liable to lead to consumption.' 3
Chambers' Encyclopaedia, 438. 'The bacillus of
tuberculosis finds, indeed, the most favorable conditions for its existence in
the squalor of congested slums, in the foul atmosphere of dusty workshops, in
close courts, alleys,' etc. 70 Fortnightly Review, 308.

'A very large number of
the most efficient workmen employed in quarries, metal works, cotton and wool
manufactories, print trades, and many other occupations exposing them to bad
air and dust, fall victims to this infection.' 194 Edinburgh Review,
444. 'Since statistics still show that the mortality from phthisis in people who follow certain trades is
much greater than in others, there can be no doubt of the causal relationship
between occupation and pulmonary disease and of dust being the causacausans. * * * In 1866 it
was demonstrated that * * * two kinds of occupation had long been recognized as
hurtful, viz., (1) those that give rise to mechanical or chemical irritation of
the air passages by dust, grit, or fluff being diffused through the atmosphere;
(2) those in which the operatives are exposed to abrupt changes of
temperature.' The Lancet, vol. 165, p. 1345. 'Living in a close atmosphere and
in a high temperature, bakers are subject to lung diseases, more especially
phthisis.' 5 Reference Handbook of Medical Science, 276.*172'Those engaged in carding of cotton and
workers in flax, hemp, tobacco, and flour, and chaff cutters suffer in the same
manner, but to a less degree, than such as are compelled to inhale more
decidedly irritating particles.' Fowler & Godlee's
Diseases of the Lungs, 272. 'Dusty occupations, as in the case of millers,
bakers, knife grinders, stonemasons, and the like, are fraught with special
dangers to vulnerable persons.' 5 Allbutt's System of
Medicine, 229. 'The inhalation of impure air in occupations associated with a
very dusty atmosphere renders the lungs less capable of resisting infection.' Osler's Practice of Medicine, 269. 'Dusty occupations make
people prone to disease.

The statistics of Berlin as to
street cleaners, cabmen, coal workers, and miners show this.' 35 Journal Am. Med. Assn. 1028. 'The question
as to what business had best be carried on by tuberculosis patients is treated
of by Ambler. * * * The butchers, he thinks, generally possess an immunity--at
least that has been his experience; but bakers are particularly susceptible.' 37
Id. 1068. 'Other vegetable dusts of less potency,
which are little less injurious in results than mineral dusts, are flour and
starch, which seem to operate rather by obstruction than by irritation.

Bakers, confectioners, and
pastry cooks represent a body of tradesmen exhibiting hygienic conditions of a
common character, the principal of which are exposure to heat from the ovens,
dust, steam, variations of temperature, in too many instances unhealthy bake
houses, fatiguing movements necessitated where kneading is done by hand,
disagreeable emanations from materials used, prolonged hours of work, more or
less night work, and loss of rest. To these evils of their trade the working
bakers often add intemperance and irregular living. My own senses also make me
conscious of a disagreeable, sickly smell much like that of heated bones,
superadded to the steam and other fumes.

There are, in brief, many
incidents in the occupation of baking which reduce vital energy, predispose *173
to lung affections, and shorten life.' Arlige,
Diseases of Occupations, 255. The occupations of rope makers, carpet makers, bakers,
etc., 'being essentially dust-producing processes, they one and all induce
among workers excessive suffering from pulmonary
affections. Although the mortality of these workers from phthisis and other
lung diseases is considerably below that of metal workers, nevertheless it is
in every case inordinately high, exceeding the mortality of agriculturists by
proportions varying from 77 to 120 per cent.' Latham's Register General's
Report, 148.

According to the data
presented by Dr. C. Moeller in his work on Hygiene of the Baker Industry (page
295), 'of bakers dying between the ages of 45 and 65, twenty-five per cent.
died from chronic bronchitis or related diseases.' He points out 'the
persistency of the flour dust and starchy particles in the bronchial tubes, and
even in the lungs' by quoting a medical authority to the effect 'that even two
and a half weeks after leaving the employment starchy particles and other
evidences of flour dust had been found in the expectoration of bakers
examined.' According to the tables of comparative mortality in the federal
census of 1900, the number of deaths among bakers and confectioners **384
was 3.2 per cent. greater than the average of general industrial occupations.
These tables are somewhat favorable to bakers between the ages of 15 and 44,
but are unfavorable to them between the ages of 45 and over, the average being
as stated above. See, also, 1 Parke's Manual of
Practical Hygiene, 133; 62 Medical Record, 334; Medical Examiner and
Practitioner, Nov. 1902, tit. 'Occupations'; Id. July,
1901, tit. 'Occupation as Affecting the Death Rate.' The heaviest death rate in
Englandfalls to cabdrivers, painters, printers,
tailors, and bakers. Mulhall's Dictionary of
Statistics, 195. Statistics relating to 39 trades in England and Wales show
that more bakers have consumption than the average of those engaged in other
vocations, and the *174 table of male mortality in Paris shows higher
death rate among bakers than in all but five out of twenty of the common
callings of life. Id. 688.

While the mortality among those who breathe
air filled with minute particles of flour is less than among those who work in
stone, metal, or clay, still it seems to be demonstrated that it is greater
than in avocations generally. The dust-laden air in a baker's or confectioner's
establishment is more benign and less liable to irritate than particles of
stone or metal; hence, while bakers are classified with potters, stonemasons,
file grinders, etc., still they are regarded as less liable to pulmonary disease
than other members of the class. The evidence, while not uniform, leads to the
conclusion that the occupation of a baker or confectioner is unhealthy, and
tends to result in diseases of the respiratory organs. As statutes are valid
which provide that women or children shall not be employed in any manufacturing
establishment more than a certain number of hours in a single day, so I think
an act is valid which provides that in an employment which the Legislature
deems, and which is in fact, to some extent detrimental to health, no person,
regardless of age or sex, shall be permitted
or required to labor more than a certain number of hours per day or week. Such
legislation, under such circumstances, is a health law, and is a valid exercise
of the police power.

I vote for affirmance.

O'BRIEN, J. (dissenting).

It will be seen from an
examination of the law that there is no prohibition against the act of the
servant himself in working longer than the statutory time. He may work as many
hours as he likes during the day, and he violates no law and commits no offense
whatever. So the broad question is whether a statute which makes it a crime for
the master to permit his servant to do what the servant has a perfect right to
do can be a valid law. No restrictions are imposed upon the servant with
respect to the hours of labor or otherwise. As already remarked, he has a
perfect right to work as many hours in a day or week as he may want to, but the
master must see to it, at the peril of committing a crime, that his servants
are driven out of the building the moment the clock registers the requisite 10
hours, and that, too, without regard to the conditions and circumstances
affecting the business or the interests of the master. It is a crime for the
master to require or permit his servant to work over the statutory time, no
matter how willing or even desirous the servant may be to earn extra
compensation for overwork. The master is forbidden
to contract with his servant for longer hours and extra pay, no matter what may
be the wants or necessities of the business, or the judgment or will of the
servant with respect to such a contract. It is obviously one *178 of
those paternal laws, enacted doubtless with the best intentions, but which in
its operation must inevitably put enmity and strife between master and servant.
They are not left free to make their own bargains in their own way, but their
mutual interests are governed by statute.

Work of the same general character
is exacted from cooks and domestic servants in practically*180 all the
private houses in the land, and to a great extent in hotels, restaurants, and
other public places. It would be absurd to say that all, or even the greater
part, of the biscuit, bread, cake, and confectionery consumed in this state
comes from what are called bakeries. The law does not even apply to bakers in
the small towns and villages who do their own work. It applies only to bakers
who find it necessary to employ labor, and they alone are subjected to criminal
prosecution in case they permit the servant to work more than 10 hours in a
day, even though the servant is willing, and is given extra compensation. The
baker is forbidden, under the penalty of fine and imprisonment, to contract or
agree with his servant upon the hours of labor in such way as would be mutually
beneficial, but his business is practically regulated by statute. If, for any
reason, he suffers or permits his servant to work an additional half hour
beyond the statutory time, his liberty and his property are put at the mercy of
the servant, who may procure him to be arrested and imprisoned.

It does not appear from
the record in this case, or in any other way, that there is anything in the
business or vocation of a baker that would
authorize the Legislature to impose such criminal penalties upon him for
permitting his servant to work more than 10 hours in the day, or to restrict
his freedom of contract, which is a right enjoyed by all other employers of
labor. The guaranties of the Constitution may be invaded without any physical
interference with the person or property of the citizen. He is deprived of his
property within the meaning of the Constitution when arbitrary and unnecessary
restrictions are imposed upon his conduct of any lawful business, and when he
is deprived of the right to make contracts for the transaction thereof.
Liberty, in its broad sense, means the right, not only of freedom from actual
restraint of the person, but the right of such use of his faculties in all
lawful ways, to live and work where he will, to earn his livelihood in any
lawful calling, and to pursue any lawful trade or avocation. All laws,
therefore, which impair or trammel those rights or restrict his freedom of
action, or his choice of *181 methods in the transaction of his lawful
business, are infringements upon his fundamental right of liberty, and are
void. Matter
of Jacobs, 98 N. Y. 98, 50 Am. Rep. 636. They
cannot and should not escape the scrutiny of the courts merly
because they are made to assume, by argument or otherwise, the guise of police
regulations.

The statute in question deprives the defendant
of the equal protection of the law, since it enacts that certain acts or
omissions on his part concerning the conduct
of his business and his relations to his own servants are crimes, and punished
criminally, which, as to all the rest of the community not within the terms of
this law, are entirely innocent. The very small fraction of the community who
happen to conduct bakeries or confectionery establishments are prohibited,
under pain of fine and imprisonment, from regulating the conduct of their own
business by contracts or mutual agreements with their employes,
whereas all the rest of the community who find it necessary to employ labor in rpivate business may do so. Class legislation of this
character, which discriminates in favor of one person and against another, is
forbidden by the Constitution of the United
States, if not by the Constitution of
the state; and so it has been held by the Supreme Court of the United
States and by this court. **387Gulf,
C. & S. F. R. Co. v. Ellis,165 U.
S. 150,17
Sup. Ct. 225,41
L. Ed. 666;Cotting v. Kansas City S. Y. Co., 183 U. S. 79, 22 Sup. Ct. 30 46 L. Ed. 92;Connolly
v. U. S. P. Co., 184 U. S. 540, 22 Sup. Ct.
431, 46 L. Ed. 679;People
v. Orange County Road Constr. Co., 175 N. Y. 87, 90,67
N. E. 129.